No, it cannot be the same order because that’ll be a conflict of interest. A lawyer can’t be engaged to condemn his own practices and you would need a new lawyer to attack your previous lawyer’s performance. And the previous lawyer would then become a witness if you’re granted a hearing. By filing the motion, you have the opportunity to have a hearing on the motion for the judge to elicit testimony about what you’re claiming your lawyer did or didn’t do. At that hearing, almost always the lawyer will take the stand, your previous lawyer, and testify about what he believes he did or didn’t do and how he feels he was appropriate or sometimes, admit he was inappropriate.
If a 3.800 Motion is denied by the Trial Judge, the Ruling Can be Appealed in Appellate Court
If you get the hearing, which is not guaranteed, then that’s a good sign and then the judge, again, would have to rule on that. Now, if your 3.800 motion is denied by the trial judge, you have a right, again, to appeal that ruling to the appellate court and so, you have the right to a full appeal on the issues that were presented at the 3.850 and you have the appellate court determine whether or not the lawyer’s performance at your trial fell below the standard and caused you prejudice. So, you’re not stuck with the judge that’s convicted you solely; you do have that next layer of challenge that you can avail yourself of and of course you should.